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Anibal Hernandez v. New Jersey Department of Corrections

March 19, 2012

ANIBAL HERNANDEZ, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 6, 2012

Before Judges Reisner and Accurso.

In this inmate disciplinary matter, Anibal Hernandez appeals from a final determination of the Department of Corrections finding him guilty of prohibited act *.005, threatening another with bodily harm, and prohibited act *.708, refusing to submit to a search. The agency imposed an aggregate sanction of 10 days detention, 120 days administrative segregation, and 120 days loss of commutation time. We affirm.

I

On January 24, 2011, a female corrections officer came to appellant's cell at 7:15 a.m. and directed him "to step out of his cell for a routine cell search." He responded by saying that he was sleeping, cursing the officer, calling her a "bitch," and saying that if she came into his cell, she would see what would "happen to your ass." The inmate was charged with threatening another and refusing to submit to a search.

The inmate was given a copy of the written charges on January 25, 2011. He was permitted representation by counsel substitute, and was allowed to propound written questions to the corrections officer. He rescinded his initial request for a polygraph test. At his hearing he relied on his written statement claiming that he asked the officer to give him a few minutes to get dressed. His statement did not directly deny making the statements the officer reported that he made.

The hearing officer found that the charges were substantiated, reasoning that the corrections officer's report was persuasive and the confrontation questions did not contradict the report. The inmate appealed to the prison administrator, claiming that he was sleeping when the corrections officer arrived at his cell, that the officer cursed at him, and that the officer did not answer several of his confrontation questions. He stated on the first page of the appeal form that he did not deny using abusive language toward the officer. The administrator upheld the hearing officer's decision.

II

On this appeal, the inmate raises the following points for our consideration:

POINT I: NO ACTUAL THREAT OF BODILY HARM WAS EVER MADE TO THE S.C.O. WHO ISSUED THE CHARGE.

POINT II: THE D.H.O., COUNSEL SUBSTITUTE, AND ADMINISTRATION FAILED TO ACKNOWLEDGE APPELLANT'S DIMINISHED CAPACITY AT THE TIME OF THE INCIDENT.

POINT III: THE D.H.O. VIOLATED APPELLANT'S DUE PROCESS RIGHTS IN THAT, ALTHOUGH CONFRONTATION WAS GRANTED, ANSWERS WERE ...


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